Facts of the case

After the 2010 Census, pursuant to the state Constitution, the North Carolina state legislature appointed House and Senate Committees to prepare a redistricting plan for U.S. House of Representatives districts. The heads of the respective committees hired a redistricting coordinator to design the new districts. The coordinator was given instructions orally; there were no written records of the precise instructions he received. The heads of the committees published public statements that highlighted certain criteria used in creating their proposed redistricting plan, such as the fact that, according to Supreme Court interpretation of the requirements of Section 2 of the Voting Rights Act, districts must be constructed to have a “Black Voting Age Population” (BVAP) of 50% plus one. To comply with this criterion, two districts were altered to have a BVAP over 50%, which meant that there were two more majority-black districts than there were under the 2001 Congressional Districting Plan. The state legislature enacted the new plan and the Department of Justice granted it preclearance pursuant to Section 5 of the Voting Rights Act.

David Harris and Christine Bowser are U.S. citizens registered to vote in the two districts at issue. They sued and argued that North Carolina used the Voting Rights Act’s requirements as a pretext to place more black voters in those two districts to reduce black voters’ influence in other districts. The district court determined that race was the predominant factor motivating the redistricting plan and therefore that the redistricting plan was an unconstitutional racial gerrymander that violated the Equal Protection Clause.

Question

Did the lower court err in determining that North Carolina’s new districting plan constituted a racial gerrymander that violated the Equal Protection Clause, either by applying an incorrect standard or by relying on erroneous fact-finding?

Should the claims have been dismissed under either the doctrine of issue preclusion or claim preclusion?

Should the Supreme Court resolve a split between the lower court in this case and the North Carolina Supreme Court, which reached different conclusions on the same issue?

Media for McCrory v. Harris

John G. Roberts, Jr.:

We'll hear argument in Case 15-1262, McCrory v. Harris. Mr. Clement.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court: This case involves the -- the constitutionality of two congressional districts in North Carolina that should be familiar to the Court because they've been before the Court on multiple prior occasions. Even though the two congressional districts here -- and they're both North Carolina congressional districts -- the issues presented by the two districts are actually quite distinct. With respect to Congressional District 12, it is different from both the House of Delegates districts in the previous case and Congressional District 1, because this was not a district that was drawn with an avowed intent to create a majority-minority district to comply with the Voting Rights Act; rather, with respect to Congressional District 12, this was avowedly a political draw. Now, if that all sounds familiar, it's because it's the exact same dynamic that was before this Court in Cromartie II.

And in Cromartie II, this Court, in reversing a district court on the clear error standard, concluded when the State actually said this was a political draw, that race did not predominate over politics in the drawing of this district. And that is essentially the exact same dynamic that is before this Court now with one major difference.

This is a much easier case for this Court to reverse than Cromartie II was, because -- and even before this Court gets to the clear error standard of review, there is a clear legal error here that was created by my friends on the other sides and the district court's failure to abide by the teaching of Cromartie II. I think Cromartie II was about as clear as it could have been, that in a case where you have a majority-minority district or something approximating it, and you have race and politics highly correlated, and you have somebody challenging the State's suggestion that this is a political and not a racial draw, what the plaintiffs must show -- not can show, not may show, not it would be nice that they show -- must show, is that there are alternative ways that the legislature could have accomplished its political goals without a comparable emphasis on race --

Elena Kagan:

Mr. Clement, that passage in -- in Cromartie II says in a case like this one. And -- and it's pretty clearly following off analysis of -- in a case with purely circumstantial evidence, rather than direct evidence of race-based districting. I think you would have heard it, and it would have sounded different if the Court had really meant that in every case where the question was, is this politics or is this race, there was a requirement to present maps.

That passage just would have read a lot differently.

Paul D. Clement:

I respectfully disagree, Justice Kagan, for at least two reasons. One is, there was direct evidence in Cromartie II; and, indeed, the direct evidence is eerily similar.

In Cromartie II, you had evidence that the map drawer -- drawer himself had taken race into account with the treatment of the African-American community in Greensboro, which is Guilford County.

Stephen G. Breyer:

In talking about that, I guess that's why I say I was the problem. (Laughter.)

What I wrote was in a case such as this one.

And then people can argue: What does that mean, "in a case such as this one"? (Laughter.)

By the time we reach the Alabama case, there is a need seen by a majority of the Court to try to bring clarity.

We're speaking as a Court.

Not every individual gets his own way, or should. And so if we go back into an area and try to reconcile the cases and try to come up with, in a complicated area, a set of standards that will prevent us from being -- turning into the nineteenth court of evidence to consider some highly detailed matters and so forth, you know, all the problems here, I would take that -- or at least I'd start taking that last case, the -- the -- the Alabama case, as at least trying to set the way in which a district court should go about deciding a case such as this one.

Paul D. Clement:

Well, just --

Stephen G. Breyer:

Do I not do that?

Paul D. Clement:

No, in the following respect, which is Alabama and Cromartie II are different cases.

Stephen G. Breyer:

Uh-huh.

Paul D. Clement:

And I'll take your point that Alabama is this Court's last, best guidance on how to deal with a case like Alabama and like Congressional District 1 where you have a State that says, why did we do it? The Voting Rights Act made us do it.

We did it. We wanted to draw a majority-minority district. But Cromartie II is this Court's last and best word on cases like this, where the State says, why did we do it? Politics.

We don't want to -- we looked at the benchmark map.

The benchmark map had Congressional District 1 over, which was here a majority-minority district, or at least close.

And we wanted to preserve that as majority-minority district. We know how to tell you when we're taking race into account.

We -- we've said we're doing it.

We're not playing hide the ball here.

We did it with respect to CD1.

And when it comes to CD12, we look at the benchmark map.

That's a political draw. Would it be --

Elena Kagan:

Well, the question is: Is it? Right? I mean, that's the question that the district court was trying to answer.

Is it politics or is it race? If it's politics, it's fine; if it's race, it's not. And -- and so let's just take a hypothetical.